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Category: Dual Agency (page 2 of 4)

November 26, 2007

The RE blog arms race

by

Realtor, Real Estate Ethicist

Author website

The (un)intentional arms race continues.

RCG, BHB, AG.

Seemingly every week brings another contributor, but to what end?

The writing has inarguably elevated the conversation. Two years ago the “divorced commission” concept was one that made sense, but had not congealed on a national level. Now, to a much greater degree, it has. I believe that there may be an end to Dual Agency in my lifetime, thanks in large part to the conversations held locally and nationally – again, due to these national blogs. The disagreements and debates are of a higher level than found almost anywhere else. The intensity with which writers and commenters argue is frequently fierce and typically civilized.

There is authenticity found here that isn’t found elsewhere. We’re not doing it for the advertising revenue. We’re not doing it for the salaries or the bonuses. We’re not doing it for all the “leads” that come our way. We’re doing it because we believe in what we do and seem to share a collective passion.

As Greg said earlier this year –

My immediate goal for BloodhoundBlog is to make it the best-read, most-rewarding real estate weblog in the RE.net. Further out, I want for our contributors to be so well known that they can pursue other opportunities: Public speaking, freelance writing, books, seminars, television shows, etc. I don’t know that we will attain this, necessarily, but the goal itself is definitely attainable: Witness Glenn Reynolds, the Instapundit.

For now, I’m interested in growing our talents to see where they can take us. I think we benefit each other more together than we would apart …

At least six Bloodhounds are speaking at Inman Connect in January; if that’s not a form of acceptance, I don’t know what is. Look at the list of speakers – Presidents, CEOs, Directors … bloggers! The numbers of bloggers is phenomenal. Gaining acceptance and influence is a journey, and each day, week, month brings another convert – and another reader/listener/follower. In response to a recent email – the people in Chicago are reaching out; the RE.net is too large and influential to be ignored. Influential and powerful groups all Read more

July 22, 2007

Top Buyer Agents Unite To Put Themselves Out of Business – Russell Shaw Tries to Save Them

by

Mega-Producing Realtor

Author website

The missing word in the title above is, “completely”. Top Buyer Agents Unite to Put Themselves Completely Out of Business. Also, based on my schedule boardwalk-coastal-wetland_AJM5A2and the (so far, at least) almost total unwillingness of Top Buyer Agents to even listen to this vital message, there may not be much reason to keep saying it. These Top Buyer Agents don’t seem to understand that they are not like most buyer agents. They are quite different. These Top Buyer Agents take their duties to their clients so seriously that they actually DO put the client’s interests above their own. Every time, in every way. These Top Buyer Agents have figured out that the current system of the listing agent paying them, with the seller’s money (of all possible pay plans in the universe) isn’t the most optimum pay plan possible.

But it IS a pay plan. You do get paid. Your buyers do get real representation.

In many well written, thoughtful and sincere posts here on BloodhoundBlog there has been a strong case made for divorcing the buyer agent commissions completely from the seller and the listing agent. Most of the points made are valid. There has been even more to think about in the back and forth in the comments section of those posts. Some very bright people saying some very bright things.

I won’t try to appeal to your self interests here, but to your interest in caring for your future clients. The current “system” offers you the best opportunity you will ever have to help the most people with your counsel. Should the commissions become “divorced” (and yes, this could happen due to some decision in a federal court room or even the Supreme Court) you will be out of business. O – U – T, out. The perfect transaction (each side having splendid and fabulous representation) will occur so rarely that anyone who worked on bringing it about will have lots of time to reflect on how great it could have been. The funny part is that you already know what will bring about your demise. It has been commented on Read more

July 14, 2007

The Imperative of Divorced Commissions, Part 2: The Inherent Value of Free

by

Realtor, Associate Broker

Author website

By far the most entertaining marketing presentation I’ve ever suffered was in the mid-eighties. I was representing a small shoe manufacturer in Worcester, MA. It was early in the comfort revolution, and the company owner had come up with a way to put a donut in the insole for the heel to rest. He’d asked a local ad agency — his brother-in-law, actually — to come up with a bottom to top marketing plan: name, packaging, hook, advertising.

Cleverly focusing in on the donut, thinking waaaaaaaaay outside the box, this is what was unveiled:

Manistee presents: ZER0&174;s!!
with
ZER0&174; Styling!
ZER0&174; Affordability!
and
ZER0&174; COMFORT!!

We never made it to the packaging.

=====

Here’s Kendra Hogue, editor for the real estate section of the Sunday Oregonian, a couple months ago:

For those of you who haven’t purchased a home before, “hiring” a Realtor to help locate a house costs you nothing.

Well.

No matter how we try to twist statutes or the code of ethics, no matter how much we argue among ourselves as to who actually pays the buyer’s agent, the fact is the debit remains on the seller’s HUD-1 and the perception is that buyers’ agents come free. And the value of ‘free’?

Zero.

No? How many Buyer Presentations have you been on in the last year? Why is it buyers are much more willing to work with the first person they meet — or with Aunt Rose’s pedicurist’s live in girlfriend’s little brother — than a seller might? Why do they often drift, as if one warm body is the equivalent of another?

No matter how much we plead that buyer’s agents are as important to buyers as listing agents are to sellers — and they are — the market price tells buyers a different story, and the argument falls largely unheard. And note importantly that the price isn’t set by the market — the customer — but artificially by the industry. Price-by-fiat is almost always disastrous [Google ‘Nixon price controls’].

The consequences are both obvious and counter intuitive. The fact that buyers don’t scrutinize their hires is a boon to the inexperienced and inept. That keeps the people Kris just Read more

June 22, 2007

The Imperative of Divorced Commissions, Part 1: Fundamentals of Narcissism.

by

Realtor, Associate Broker

Author website

3bac.jpgI was running in a local park a few days ago. The road into the park is about a half mile long and barely wide enough for two cars to pass in opposite directions, thus there are “NO PARKING AT ANY TIME” signs on both sides the entire length. As I drove in two mini-vans were parked next to a field, and I waited as two other cars coming the other direction passed. Three women were in the field chatting and setting up cones, perhaps for a relay.

As I ran out ten minutes later, the vans were still there, but now there were five cars stopped in one direction while three others drove by in the other. The women were oblivious, corpulent Paris Hiltons. When I suggested they move their vans to a parking area fifty feet away, one said “Oh, get real. It’s not as if this is a major thoroughfare.” Solipsism at its summary best. Rules are fine unless they’re inconvenient.

…

696.810 Real estate licensee as buyer’s agent; obligations….
 (3) A buyer’s agent owes the buyer involved in a real estate transaction the following affirmative duties: …
 (c) To be loyal to the buyer by not taking action that is adverse or detrimental to the buyer’s interest in a transaction;
 (d) To disclose in a timely manner to the buyer any conflict of interest, existing or contemplated;

Whenever the charge of venality is brought against the real estate profession, out comes the Code of Ethics, here codified into Oregon statute. It’s our Wizard’s Curtain; while most agents I work with — and I suspect most people here — take it very seriously, too many don’t.

The reason high BACs and agent bonuses are used so often as marketing ploys is because they work. I was told recently by one agent who incorporates both in many of his older listings that not only does he immediately get more showings, once under contract the buyer’s agent is much more eager to cooperate to get Read more

May 28, 2007

Separating the Buyer Agent Commission From the Listing Commission is a REALLY stupid idea

by

Mega-Producing Realtor

Author website

This is a continuation of Jeff Kempe’s thoughtful post below. At first, I was going to reply to his post via a comment. But as I thought about it I realized there was way more I wanted to say.

First things first: Welcome Jeff, Lani & Morgan! I’m delighted to have you here.

__

It is common for a person to have a completely false idea of why something is good or bad and for them to still be correct that it is good or bad. This can come about when the person looks to see why something is the way it is and not knowing the correct answer (real reason why) they then make up or invent an answer. This new datum is then used to explain away some situation or circumstance they observe. This is so common that you can see examples of it in almost every profession, industry and government. Failure to correctly observe the real “right why” is THE WHY for every failure any individual, organization or government ever had. A real WHY opens the door to handling.

Man too often finds that his “solutions” become his new problems. Most of the difficulties one faces on a regular basis (problems) are, in fact, themselves solutions to earlier problems.

I do not intend to be disrespectful here towards your friend and mentor, Jeff – but several of the things he has informed you about are completely incorrect. The thinkingcapidea that a Realtor not sharing a commission was passed into law in state after state after state, across the country, to “protect Realtors” or to somehow impede discounters is just flat wrong. I can’t say that any of those laws were the best possible solutions but they had nothing to do with “protecting Realtors”. In every state where a real estate license is required to legally earn and collect a commission (all 50 in the United States, last time I checked) there is some sort of rule or regulation that states commissions can not be paid to an unlicensed individual. In most every state there is a special exception to this rule for lawyers Read more

May 8, 2007

A Case (by Case) For and Against Dual Agency

by

Realtor, Associate Broker

Author website

Trevor Smith’s answer to Dual Agency?

Let the buyer represent himself, and give him the commission regularly paid to the Buyer’s Agent. (Granted, this would still leave the buyer relatively unprotected, but at least if something goes bad, its his own fault and not the agents).

Your obvious question is, “Where are the customary apostrophes to indicate a contraction or possessive noun?” No, wait, that is just me. What you are really thinking I suspect is that this sounds suspiciously like a Redfin philosophy, but then, Trevor is not so coincidentally a Redfin agent from Seattle.

By the way, according to Trevor, Redfin’s Blue Collar Spokesmodel, they are gaining market share there at warp speed. In 2006, it was reported that Redfin closed over 200 transactions. Now, it seems they are putting those deals to bed at a clip of 90 a week. I feel a press release coming on!

In light of Trevor’s recent remarks, I’ll take the opportunity to open old dual agency wounds. Is dual agency truly the root of all evil? It depends on who you ask. Even here at the Kennel Club, we have two camps. Now, let’s make that three.

I fall somewhere in the middle on the subject. Steve and I have acted as dual agents in many transactions. We do not like it, and we do not seek it out, but at times it is so very appropriate that any argument suggesting we are compromising our agency duties is simply ludicrous.

BITING THE HAND THAT FEEDS ME

Greg Swann is a well-known critic of dual agency transactions.

Disclosed Dual Agency cannot possibly be effected — in reality — without repeated, overt agency violations.

I will offer one example of how this statement is not only wrong but offensive to those of us that bend over backwards to protect the rights and interests of our clients – all of them. We closed escrow recently on a transaction involving our listing and our buyer. The reasons dual agency worked in this situation relate back to Russell Shaw’s contention that we have less control over our client’s decisions than one might imagine.

The idea that the Read more

February 14, 2007

Dual Agency Smack-Down: Buyer’s and Seller’s Informed Consent to Limited Dual Representation

by

Suburban Phoenix Real Estate Broker

Author website

I really don’t like Dual Agency. I think that’s pretty well established. Even so, Russell Shaw convinced me — in person, not on BloodhoundBlog — that BloodhoundRealty.com would have to offer Dual Agency if it is to list effectively in the historic districts of Downtown Phoenix.

Right about the same time, we undertook the Dual Agency Smack-Down, an attempt to explore the issue in detail. At a certain point in that debate, I hit what I thought was an insuperable wall. The problem was the complexities of a represented real estate transaction:

The only workable way even to achieve Disclosed Dual Agency is by repeated, overt agency violations against either the buyer or the seller, or each in their turn. In other words, you would have to hint at them what to “order” you to do, and each one of those hints would be a betrayal of the interests of the other party.

The problem, as I came to see it, was the word “detriment” in the Arizona Association of Realtors Consent to Limited Dual Representation form. If a broker could not act in any way detrimental to either party, then he could not offer any meaningful or useful advice to either party.

As it turns out, that word “detriment” turns up in Dual Agency disclosures from all over the country. I had a Realtor in Florida send me a disclosure for Transactional Brokerage (that is, no agency for either party) and the word “detriment” even appears there.

Interestingly, the statute law of Dual Agency in Arizona is not nearly so restrictive. The law requires disclosure and informed consent, but it does not insist that the Dual Agent cannot act in ways that might be perceived as being detrimental to one party or the other. Obviously the common law dictates of agency come into play, but the point of a Dual Agency Disclosure form is to modify agency for both parties in such a way as to permit the transaction to take place.

The problem — in Arizona, take careful note — was not Disclosed Dual Agency but, rather, the impossible restrictions that were being imposed by Read more

January 20, 2007

I Told My Agent About The House I Wanted To Buy

by

Mega-Producing Realtor

Author website

Rob wrote:

After moving to the area and looking around at properties for a while, I saw one place I was interested in and contacted the seller ‘s agent directly. She agreed to show me the property, and since she was located out of town encouraged me to find a local agent who could show me more things in the area. After looking for a while with another agent and not finding much that I was interested in, I told him about this place that I had already seen and we went and looked at it together.My question:
-Is there any reason that my agent would like me to buy another property instead of this one? Is the sellers agent entitled to more of the commission? I get the impression that he was hesitant to show me this property again and that he is trying to steer me toward other places.
-Also, would it be unreasonable to ask that he reduce his commission since I was the one that found this place?

I just saw the excellent response from Doug Quance, after writing this one. Decided to go ahead and post mine too – as my answer is a bit different.

Rob, the issue your current agent seems to be concerned about is called “Procuring Cause” – who was the “reason” you chose that particular property. Based on my understanding of how it works – and would be enforced if a subsequent agent were to interfere with an existing relationship – your current broker doesn’t have much to be worried about. There is a vital component of procuring cause that is not evident here and that is usually referred to as an “uninterrupted chain of events“. Also, taking into consideration the fact that the listing agent encouraged you to get your own agent, my take on this is it would be totally alright for your current agent to write the offer on the house you want.

I wouldn’t have any way of knowing what the listing agent’s commission would be if she wrote the offer or if it was written by another agent, so can’t answer that Read more

January 8, 2007

Dual Agency Smack-Down: Arizona Association of Realtors General Counsel Michelle Lind on Dual Agency . . .

by

Suburban Phoenix Real Estate Broker

Author website

The Arizona Association of Realtors has just published Arizona Real Estate: A Professional’s Guide to Law and Practice by Arizona Association of Realtors General Counsel Michelle Lind. I don’t know what is planned for this book, but it is comprehensive enough to be used as one of the texts in a pre-licensing or broker’s licensing class.

I got my copy today, and I thought I’d highlight the material on Dual Agency. This rendering is not hugely different from the material Lind has had on the AAR website, but I think the statute law makes it plain that, in Arizona, the parties to a Dual Agency can consent in writing to terms less stringent than those specified in the current “AAR Consent to Limited Dual Representation” disclosure. I haven’t gotten around to writing a disclosure that describes Dual Agency transactions as they actually occur — in part because I’ve been waiting for this book to be published — but I’ll put a form together and take to Lind to see how it flies.

Nota bene: This is interesting reading, but if you are not licensed in Arizona, it does not apply to you. Your local laws may be radically different.

 
DUAL REPRESENTATION (DUAL AGENCY)

Dual representation (dual agency) occurs when one broker individually, or two salespeople within the same brokerage firm, represent both the buyer and the seller in a real estate transaction. Dual representation is lawful with prior written consent. The ADRE Commissioner’s Rules provide that: “A licensee shall not . . . represent both parties to a transaction without the prior written consent of both parties.” See, R4-28-11O1(F). Consequently, the ADRE may sanction a licensee if the licensee has “[a]cted for more than one party in a transaction without the knowledge or consent of all parties to the transaction.” A.R.S. 32-2153(A)(2).

Dual representation involves inherent conflicts. Therefore, in most residential resale transactions in which a broker acts as a dual agent, the broker obtains the consent of the parties on the AAR Consent to Limited Representation (12/02) form. This form is not mandated by statute, but is helpful in explaining dual agency and its consequences Read more

November 27, 2006

Jay Reifert Is Tired Of NAR Hiding The Truth

by

Mega-Producing Realtor

Author website

Good news, Jay, I’ll take this one for $200.00. I doubt that Laurie Janik is going to respond to you (as – per you – they have “something to hide”):

You’re a riot, Steve. My contract is a proprietary document, built out of years worth of my research, experience and fine tuning. Why don’t you ask Coca Cola to post their secret recipe here? I have no intention of putting it out here for you, and your kind, to copy.

Why don’t you call Laurie Janik, General Counsel of the National Association of Realtors? over at NAR headquarters in Chicago and ask Laurie to do something about me? I am just spoiling to
get this fight into the public eye, so that the abuses endemic with Procuring Cause, the silent theft of home buyer rights,will come to the forefront of consumer consciousness.

I have no qualms, whatsoever, about the truth of this situation getting out. Unlike NAR…I have nothing to hide.

The buyer agent document you use is a SECRET that you won’t share with other agents? And you think that you are being ignored by Laurie Janik because “NAR has something to hide”? What a self-important gas bag you are. Please allow me to let a little of the air out. And to answer your burning question, yes Jay, I did Google “procuring cause””reifert”. Anyone who cares to can just hit the hyperlink.

I found your views and attitudes so self centered and oblivious of how the world works (the one everybody else lives in) that – before I reply – I am including your comments on Bloodhound Blog here in their entirety.

Thank you for the kind words, Trevor. The Procuring Cause that is of importance, here, is Realtor? Procuring Cause, hereafter–in this post–PC. Although there is a legal doctrine of procuring cause, that isn’t the breed of which any of us speak, when talking about PC. NAR hands down the guidelines on PC arbitrations, but it is up to each panel–very often composed of hard core PC trappers–to interpret the events which will determine who is actually PC in any given transaction.When Read more

November 21, 2006

Dual Agency Smack-Down: The RE.net smacks back . . .

by

Suburban Phoenix Real Estate Broker

Author website

Here are some weblogs addressing the Dual Agency Smack-Down from their own points of view:

Whenever we talk about Dual Agency, the most fascinating remarks to me come from Christine Forgione at NY Houses 4 Sale. Because they’re still working from sub-agency, we look like aliens to each other.

More from New York from Douglas Heddings at True Gotham.

Daniel Rothamel at The Real Estate Zebra explains the industry’s ambivalence about Dual Agency with a sports metaphor.

And Ardell weighs in with two posts. I like to see her picking up Dustin’s link-a-bration slack…

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November 20, 2006

Dual Agency Smack-Down – Russell Answers Up

by

Mega-Producing Realtor

Author website

Trevor Smith writes:

First, I want to say that you are incredibly articulate and a great writer. You know what you believe, you’ve researched it, and you stand by it. So, as far as that goes I respect you.

Second, I am with John L Scott, where I charge 4% commission for a full service listing package. I love John L Scott, and my Broker has been very supportive of my business model.Third, I recently interviewed with Redfin. This is not because I don’t like John L Scott, but becasue I believe in Redfin’s model. I believe that the REALTORs who will succeed in the next 30 years will likely adapt to a model similar to Redfin’s (ie lower commissions)

I would point out that since John L. Scott is a proven company and Redfin isn’t – your odds of success are far greater at your present home. If your present company – I believe it is the largest and most successful real estate brokerage firm in the entire northwest – is willing to support you in your desired business model, wouldn’t it make more sense to stay there? Check around and find out what the most successful John L. Scott agents earn and compare that to what the most successful Redfin agents earn.

If Redfin were not a public company (one supported by raising cash from investors) they wouldn’t even have their doors open now. It isn’t a sustainable business model. You are free to ignore my comments and to believe that I am “biased” against them because they are a discounter, but you would be wrong in that assumption. Many companies are “discounters” and do quite well and I have no quarrel with them either.

Fourth, by interviewing at Redfin, I learned EXACTLY how Redfin operates their business, and so when you say that Redfin is not procuring cause… respectfully you’re the monkey… because you’re wrong. Redfin, does show houses to their buyers, does do the paperwork, and does take it to closing. That is procuring cause.

There may be circumstances and transactions where they aren’t guilty of violating procuring cause, nevertheless, that business model Read more

November 20, 2006

Dual Agency Smack-Down: A chicken in every pot and a sword for every Gordian Knot . . .

by

Suburban Phoenix Real Estate Broker

Author website

I solved this problem today. It wasn’t even that tough, once I started looking at it the right way.

As I pointed out earlier today, the issue is this language in the AAR Consent to Limited Dual Representation form:

neither Broker nor Broker’s Licensee(s) can represent the interests of one party to the exclusion or detriment of the other party [emphasis added]

What that language says, in my opinion, is that no Arizona brokerage that has undertaken Disclosed Dual Agency using that form has done so in a way that would withstand the questioning of a plaintiff’s attorney.

I believe it is impossible for any brokered real estate transaction to close according to the strict terms of that language. Instead, every Arizona brokerage that has undertaken Disclosed Dual Agency using that form has routinely, repeatedly and serially acted in ways detrimental to both buyers and sellers, each in their turn, throughout every one of those transactions.

This was not malicious. To the contrary. The Disclosed Dual Agent was acting in the best interests of each client, each in their turn, and each of those clients had an absolute veto power over everything that was done at each step of the process. The problem is simply that a brokered real estate transaction is too complicated to be effected without expert advice. In tendering that advice, in all good will, the Disclosed Dual Agent will have acted to the detriment of the other party every time he gave good, solid, useful advice to the party before him.

(I will concede for the benefit of quibblers that someone could try to deliver the type of completely prostrate, advice-free “service” required by that language, provided that the quibblers will concede that both buyer and seller fired their prostrate agent as soon as they apprehended the type of “service” they were to receive. In other words, the conduct required by the form is theoretically possible, but it has never, ever happened.)

Here’s the cute part, though: The actual problem is the form itself.

The statute law of Disclosed Dual Agency (A.R.S. ? 32-2153(A)(2) (“Acted for more than one party in a transaction without the Read more

November 20, 2006

Dual Agency Smack-Down: Collective truth? Fifty million Frenchmen can be as wrong as one . . .

by

Realtor, Staging Consultant

Author website

I doubt that even Jeff realizes this, but I am the provocateur of the Titans’ duel over the pros and cons of dual agency. It started when Greg and I met Russell Shaw. The man is a font of knowledge, and he’s very very generous with sharing the “secrets” to his success. Already we have been enriched by his friendship. As we discussed the different aspects of our industry last Tuesday night, conversation led to our stand on dual agency, which I am largely responsible for.

Dual agency has not even been an opportunity for me yet… so far I haven’t had a buying client who would have been interested in any of my listings. But I’ve seen Greg serve as a disclosed dual agent, and as promised by Russell and Jeff the successfully closed transactions were probably more successful for his clients because Greg handled both sides. In all but one of the cases I can think of, the buyers and sellers were investors. The exception was with an extreme pet lover who needed an agent to find her a buyer without using the MLS (someday Greg will have to write this Realty Reality story). But then we had the dear friend failure and when we evaluated the philosophy of dual agency, we established our No Dual Agency policy.

This policy has not been easy on us. It certainly hasn’t given us a market advantage, because the typical home buyer or seller doesn’t pay that much attention to the philosophy of our industry. In fact, we end up shedding prospects who come to us through avenues that other brokerages use to drum up new clients. When I hold open houses in areas where open houses actually bring in potential buyers, I always try to find an agent from a different brokerage to sit the open house with me, so that agent can try to turn visitors into clients. When we get sign calls, we’ll show the house, but when the prospect starts making buying signs, we’ll suggest that they get an agent to represent them or offer to refer them (and we Read more

November 20, 2006

Dual Agency Smack-Down: Interlineal chatter . . .

by

Suburban Phoenix Real Estate Broker

Author website

This is from the AAR Consent to Limited Dual Representation form:

The Broker now represents both Buyer and Seller and both parties understand that neither Broker nor Broker’s Licensee(s) can represent the interests of one party to the exclusion or detriment of the other party.

The important word is “detriment”. I think the argument I posted yesterday eats that language entirely. The implication is that any dual agency that makes it before a judge will lose. There is absolutely no way to comply with that language. The only method even conceivable is to leave both parties flailing stupidly like FSBOs and BUBBAs.

But: We do end up with an excellent argument against FSBOs and BUBBAs: There is absolutely no way non-professionals can achieve professional-quality results in a real estate negotiation. They simply don’t know what to do, and they don’t even know that they don’t know it.

I’ll summarize later, but I think my own position is quite a bit stronger than it was on Friday. I do have ideas for alternatives, and I’ll go through those as well.

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